United States District Court, D. Maryland
L. HOLLANDER UNITED STATES DISTRICT JUDGE.
civil rights action, plaintiff David Simms seeks money
damages resulting from his alleged unconstitutional placement
on Maryland's sex offender registry. ECF 1. Following
amendment of the Complaint (ECF 3), the Court issued an Order
on October 26, 2017 (ECF 7), substituting former Governor
Martin O'Malley, former Lt. Governor Anthony Brown, and
former correctional officials Gregg Hershberger and Patricia
Donovan as defendants' and dismissing the defendants
originally named in the Complaint (State of Maryland,
Baltimore City, Baltimore County, Baltimore City Police,
Baltimore County Police, Department of Public Safety,
Division of Corrections, and Division of Parole and
have moved for summary judgment (ECF 12), supported by
memoranda (ECF 12-1; ECF 18) (collectively, the
“Motion”) and exhibits. Simms opposes the Motion.
ECF 16; ECF 17.
hearing is necessary to address the Motion. Local Rule 105.6.
For the reasons that follow, defendants' Motion is
denied, and Simms' request for appointment of counsel
(ECF 1 at 6) is granted.
is not new to the criminal justice system. He is currently
incarcerated at Eastern Correctional Institution
(“ECI”), where he is serving sentences imposed
following his 2016 convictions in the Circuit Court for
Baltimore City for robbery. See Maryland v. Simms,
Crim. Case. Nos. 116340011, 116340012 and 116340013 (Balt.
City Cir. Ct.).
1994, Simms was convicted in the Circuit Court for Baltimore
County for attempted rape in the first degree, then codified
under Md. Code Ann., Art. 27, § 464F. On October 18,
1994, the Circuit Court imposed a 15-year sentence for the
offense occurring on April 7, 1994. ECF 12-2 at ¶ 3.
Defendant was not required to register as a sex offender at
2001, Maryland's sex offender registration law was
amended to mandate registration of sex offenders who
committed an offense requiring registration before July 1,
1997, if the offender was either in custody or under the
supervision of a supervising authority on October 1, 2001.
See Md. Code. (2001 Repl. Vol.), Crim. Proc. §
11-702.1(a) of the Criminal Procedure (“C.P.”)
Article. Thus, Maryland's registration statute
required Simms to register as a sex offender as of that date.
ECF 12-2, ¶ 4. Defendants state that due to an error on
the part of DOC staff, Simms was not registered at that time.
September 6, 2004, while Simms was still incarcerated, Simms
was registered as a sex offender and classified as a sexually
violent offender under C.P. § 11-701(f)(2) (Supp. 2004),
which defines a sexually violent offender as “a person
who has been convicted of an attempt to commit a sexually
violent offense.” ECF 12-2, ¶ 5. The registration
period for a sexually violent offender is lifetime.
Id., § 11-707(a)(4)(ii)(2). Id. On May
12, 2009, Simms was released from DOC custody. ECF 12-2,
2010, following his release, Simms was charged with violating
C.P. § 7-105 (theft under $1000), in Maryland v.
Simms, No. 1C00325053 (Balto. Co. Cir. Ct.); C.P. §
6-205(c) (burglary in the fourth degree), in Maryland v.
Simms, No. 3B02067446 (Balto. City Dist. Ct.); and for
failing to register as a sex offender, in Maryland v.
Simms, Nos. 111082035 (Balt. City Cir. Ct.) and
2C00333258 (Balto. Co Dist. Ct.). ECF 12-2, ¶ 6. In
December 2010, after Simms' release from custody in the
Baltimore County Detention Center, Simms registered as a Tier
III sex offender under C.P. § 11-701(q)(1)(ii) (Supp.
2010), which defines Tier III sex offender as, inter
alia, “a person who has been convicted of . . .
committing a violation of: . . . § 3-309 . . . of the
Criminal Law Article, ” the successor section to Art.
27, § 464F. ECF 12-2, ¶ 7. The registration period
for a Tier III sex offender is also lifetime. C.P. §
August 2014, in the consolidated cases of Dep't of
Pub. Safety & Corr. Servs. v. Doe and
Hershberger v. Roe, 439 Md. 201, 94 A.3d 791 (2014),
the Maryland Court of Appeals determined that retroactive
application of Maryland's sex offender registration
statute violated Article 17 of the Maryland Declaration of
Rights. As a result, Simms's name was removed from the
Maryland Sex Offender Registry (“MSOR”) on August
7, 2014. ECF 12-2, ¶ 14. However, the convictions for
failing to register remain on his criminal record.
alleges that defendants violated his rights from October 2004
until August 11, 2014 by requiring him to register as a sex
offender on the MSOR. ECF 3 at 5-6. He also alleges that from
2009 through August 2014, he was forced to register, required
to comply with the sex offender registration requirements,
and was “deliberately incarcerated” for failing
to comply with those requirements, in violation of his
rights. Id. Essentially, Simms argues that
defendants violated federal prohibitions on ex post
post facto analysis involves a two-step inquiry.
"To fall within the ex post facto prohibition,
a law must  be retrospective . . . and  it 'must
disadvantage the offender affected by it' by altering the
definition of criminal conduct or increasing punishment for
the crime." Lynce v. Mathis, 519 U.S. 433, 441
(1997) (citations omitted); accord Cal. Dep't of
Corrs v. Morales, 514 U.S. 499, 504 (1995); Collins
v. Youngblood, 497 U.S. 37, 43 (1990)
("Legislatures may not retroactively alter the
definition of crimes or increase the punishment for criminal
acts."). “The Ex Post Facto clause does
not preclude a State from making reasonable categorical
judgments that conviction of specified crimes ...